CHAPTER 2 NATURE OF LAW “Before we come to the individual laws, let us look at the character and nature of law, for fear that, though it must be the standard to which we refer everything, we may now and then be led astray by an incorrect use of terms, and forget the rational principles on which our laws must be based....” — Cicero, The Laws* 1, LAWAS RULES AND PROCESS A. LAW AS RULES ‘A common misconception of law is it is but a set of rules and that when dispute arises, all a judge does is find the right rule and apply it mechanically, even ruthlessly. Thisis how formalis ad under severe critici simplistie, way of loo account the totality and social context of the law. In other words, it looks at law as rules and fails to consider the deeper — human or social — factors why people violate the law, and the impact of the violation on the larger society as well as the offend the aw as rules’ approach is it me eg. quick disposal of cases from the court dockets. That it is dismissive of the other aspects of human experience; that it does not factor in the relationship of the litigants. WGicero De Re Publica, C W Keyes (trans), Harvard University Press, 1951, p.379 et seq. 17HY FOR FILIPINOS: JAL PHILOSOP! CH 18 BGA CASE STUDY APPROA i tment of the ives a superficial treat n a Sart ak the larger causalities why lega} i me ‘i had arisen in the first place. ‘li 18-1980) wrote: ‘Cth liam O. Douglas (189! J ela i ib venee of calculating machines where definiti - d answers come tumbling out when the right levers an shed.” Justice Douglas, himself a recipient Of life's miseries and deprivations who as a student Worked on odd jobs as waiter, janitor, and sherry, Picker, wag Woted said: I worked among the very, very Poor, the kat the Chicanos‘ and oelaWe who | ing shot at by the police. Isaw cruel a Sey eae was to be a force in other develo) in the law.’ Indeed, while the constitution mandates ‘ protection of the laws’ this did not prevent 19th ceny French satirist Anatole France from observing that; ‘Tthhe law in its majestic equality forbids the rich as well as the Poor to sleep under bridges, to beg in the streets, and to steal bread.” ments B. LAW AS PROCESS Law may also be regarded as a process, the rules being merely an aspect of the process. Laws are not just statutes per se but the whole gamut of the life experiences of lawmakers, law enforcers, law breakers or followers as well as lawyers, judges and legal theorists, A legal scholar said that: Law is very like an iceberg; only one-tenth of cuments, institutions, and nine-tenths of its substance 8. Su . Douglas, quoted in ‘The Rok Taking Sides: Clashing Vig a le of Law by M.Ethan Katsh, (16th 0), 1996, View on Controversial age Issues, Dushkin/MeGraw Hill ‘pexican-Americans, particular ly nati ; spnuttrial Workers of the World ee Americans of Mexican blood. Mole France, quoted by M then Katsh, supra, the longest serving justi Justice Wie etving justice of the UgCHAPTER 2 NATURE OF LAW that supports its visible fragment leads a sub- aquatic existence, living in the habits, attitudes, emotions and aspirations of men’ Al may be a y angles: Societal community, workplace, school or religion. Deep-seated Filipino values of hiya, utang na loob,* pakikipagkapwa,* iusop," pakikisama,* paggalang,” delicadeza and taba” help define and give meaning to a Filipino’s behavior in relation to his dealing with the law. I. COMMON CHARACTERISTICS OF LAW A. OBEDIENCE ‘The element of obedience isa common characteristic present in all types of law. The degree or freedom to which a subject may disobey as well as the extent or coverage of the law is what differentiates the various types of law. For instance, scientific or “natural” laws involve all things while human laws are for man alone. The former cannot be violated, hence, the element of freedom or morality is out of the question. They are inviolable. The law of gravity for example. By contrast, the laws of man involve human conduct which may or may not be obeyed. They are potentially violable and their obedience is anchored Tredell Jenkins, Social Order and the Limits of Law, Princeton University Press, 1980, p. xi. Literally, “shame,” drives the Filipino to act in ways which would protect his family, and his family's image and reputation. ‘Literally, a “debt of gratitude,” compels a Filipino to reciprocate (“pay back") the favor or service previously given him. 4éto be one with others.” Literally, “request,” makes the Filipino reach out to his fellowmen to solve problems or for the other to soften his position. ‘Literally, “companionship,” helps Filipinos smoothen whatever friction arises cout of their social relationships. “to respect or honor.” sMfeaning “to be proper,” in the sense that the Filipino should behave properly adi rend not ‘abuse a friendship by doing something that would hurt or embarrass a “Cebuano term for “divine retribution or punishment” which come as a natu- ral consequence of some transgression, especially a moral transgression.L. PHILOSOPHY FOR FILIPINOs: aaa CASE STUDY APPROACH ‘on man’s freedom and free will. Kani t calls thig law sphere of freedom. in the B. GENERALITY principle of generality sees laws as gen, rathar thin ‘particularly’ framed. The rules mandate, cars to siap at a red light or prohibiting epaca Bend a limit applies to all and without exception, The lee Could not focus on particular drivers, driving pat Z cars under particular circumstances, The law Pligg irregardless of the status of the dri f ver: young- old, unknown, powerful-jobless, or the type of car used: top-of. the-line or rickety. Under this principle, the law is te law regardless of particular attendant, circumstances, Also, from the point o! Presumed to know in advance a Sex is committed with a girl, The Principle of, Senerality ig Sometimes contrasted with that of particularity, In the latter, the police officer for example chooses to apply the law depending on Particular circumstances, or example, fining the poor and unknown but exempting the rich and Powerful traffic Violators, CASE sTupy. Frederick Schauer dig laristic from the Seneralisti: iving, * Police officer stops a driver for unsafe driving, the Particularistic Police officer making 4 particularistio decision Whether to summon the driver to appear in court would take into account the condition of ihe Toad, the amount of traffic, the Weather, the time of day, the type and condition of car, the “Xperience ang Previous driving record tinguished the particu- c decision maker:os ai Cc. CHAPTER 2 a NATURE OF LAW of the driver, the explanation offered by the driver, and perhaps even the ability of the driver to pay the fine. At its extreme, particularism is about taking everything into account. By contrast, a more general decision-making style would not focus so closely on particular drivers driving particular cars under particular circumstances, but would rather have made the decision in advance about an entire category — all drivers driving all cars under all conditions on a moderately large stretch of highway. Whatever real differences might exist among actual drivers, actual cars, actual conditions, and actual locations would be ‘suppressed in the service of making decisions based on large categories rather than on exceedingly narrow and situation specific facts."* PROMULGATION In Aquinas’ Treatise on Law, a question was asked whether promulgation is essential to law. He said it is essential, and refuted the three objections which argued that promulgation is not essential to law. The objections raise three points: a) natural law which has the character of law needs no promulgation; b) law’s force affects not only those to whom the law is directly promulgated but also those who were not parties to its promulgation, eg. foreigners in the Philippines are subject to Philippine penal laws even though they were not present when the same were promulgated; and c) the force of the law extends to the future and binds those unborn at the time the law was promulgated. Aquinas replied that: a) “natural law is promulgated.” He reasoned that its “promulgation” can be gleaned from the fact that God instilled natural law “into the man’s mind” so that this natural law can be “known by him naturally;” b) those who are not present during the law’s promulgation are bound to observe the law in that they can be notified by others of the law after it was ‘Prederick Schauer, The Generality of the Law, 107 West Virginia Law Review, 217, 2004.22 "Aquinas, Summa Theolog "United Nations Security Oot Justice in Conflict and Posbeontist oar te the Rate of Law and Trans pHILOSOPHY FOR FILIPINOS: Lnaal CASE STUDY ‘APPROACH “ ility of written ch; . and c) the ‘durability of char, promulgate 8 may be “continually Promulgate, ensures ture. Aquinas then quotes Isidore (p, the fu 4 . ym, oven Ho) hat “Tex Caw) és derived from legere (to rea dooause it is written.” THE RULE OF LAW f law” is an established legal Principle una Oe whenever a legal issue presents itselp it must be decided by applying the accepted Principles of law. In so doing, the will and personal “discretion” of the judge is set aside, and he is must apply the In principles of law according to the will of the legislator, ‘According to the report of UN Secretary-General Kofi Annan to the UN Security Council, “rule of law” isa “principle of governance” in which all persons, institutions and entities, public or private, including the State itself, are “accountable to laws that are: publicly promulgated equally enforced independently adjudicated, and consistent with international human rights norms and standards.”* Rule of law also requires adherence to the following legal principles: 1. _ supremacy of law, i.e, the rule of law is higher than any person’s discretion or will; 2. accountability to the law, i.e. one is liable to be called on or to render an account before the aw; Pepe + fairness in the application of the law; 4. separation of powers; 5: participation in decision making; (Treatise on Law), Fourth Article. ed Nations, New York, eties, Report of the Secretary-Generel, Ui"CHAPTER 2 2 NATURE OF LAW 6. legal certainty; 7. avoidance of arbitrariness; and 8. procedural and legal transparency.” CASE STUDY: Comparison between poor and excellent legal systems This is a hypothetical case study of two sys- tems. Note that the comparison does not only refer to a country but to any organization governed by rules such as a club, association, school, or business organization. Poor 1. Rules are not clear, or are ambiguous. This means cases are decided ad hoe, or on a case to case basis. clearly written such as there could be no doubt what they . Retroactive laws are | 3. No retroactive law, unless for the ben- efit of the accused or those already convicted.24 LEG 4, Rules cannot be understood — a8 to when it begins, who are or are not affected, what acts like. another. 6. Rules require acts which are difficult difficult to follow which one is the latest. 8. There is a gap between the rule (aw) as such and the implementing istration), 9. Appellate steps unclear. and unreasonable, E. Is INTERNATIONAL LAW relationships between countries are covered and the 5. Rules contradict one or beyond normal they can normally compliance. achieve. 7. Rulesarechanged | 7. Rules generally so often — itis remain constant. regulations (admin- 10. Penalty is draconian FILIPINOS: AL PHILOSOPHY FOR "A CASE STUDY APPROACH stood. 5. Rules are consistent and support one another. 6. Rules only require those affected what 8. The rules are uni- formly observed by the lawmakers, department heads, regional directors, local officials and the police, 9. Appellate steps and other grievance mechanism is Clearly spelled out, 10, The TRUE LAW? International law is that bray inch of law that Vverns and other multinationnsCHAPTER 2 35 NATURE OF LAW ‘actors’e.g. agencies and organizations, atthe international level. Its purpose is for nation-states to maintain peaceful and productive relationships among each other. International law relies on agreement or consensus from among its member states. At present, there is neither a ‘world constitution’ nor ‘world legislature’ from which a binding world law could be enacted.” If law is a rule of conduct which a community considers as ‘binding upon its members, then some argue that international law is not true law. They cite the following reasons: 1, There is no binding law that applies to all countries. 2. There is no “world congress” legislating laws for mankind 8. There is no “world executive” to enforce inter- national law in case of violation.” Article 38(1) of the Statute of the International Court. of Justice (ICJ) enu- merates what are now generally accepted as the “sources” of international law: a, international conventions (treaties), “expressly recognized by the contest- ing states; b. international custom, as “evidence of a general practice accepted as law” © _ the general principles of law “recognized by civilized nations,” and d. judicial decisions and teachings of the most highly qualified publicists of the various nations (uristic writings), as “subsidiary means for the determination of the rules of law.” While Article 38(1) is silent regarding preference in case of conflict, some ar- gue that the rules established by a treaty take priority in the determination of in- temational law. Others maintain that international conventions and customs have equal rank; that later treaties override older customs and new customs supersede old treaties. In any case, treaties and customs are generally regarded as primary sources while judicial decisions and juristic writings of authorities in the field are the subsidiary or secondary sources. It is not clear whether the “general principles of law recognized by civilized nations” is a primary or secondary sources. *The United Nations does not legislate. At best it articulates international norms (eg. Universal Declaration of Human Rights) or encourages member countries to enter into conventions (treaties) that binds the signatory countries, Thus, “Inter- national law” as such consists of international treaties (voluntarily entered into by nations) and customary international norms. “Article 42 of the UN Charter states that the Security Council UN may mo- bilize armed forces only in cases of threate to peace, breach of peace and acts of aggression,Ss | INOS: pI PHY FOR FILIPI ee PEA STUDY ‘APPROACH «not ttrue law” if the parties are fre, MT is net and ifit cannot be enforced," jsrege ise known as the cle 2(7), otherwise 6 non. > sec oR clause of the U.N. Charter, give, sy hh member state of the United Nation, eacl to be intervened in its domesti, irs. This is otherwise called | the “non, ctervontion” or “non-interference” clause of the U.N, Charter.” ‘The proponents who argue that international law is true law argue that: icability to all countries is not a require. a rrieea rule tobe considered as law. ‘A world congress and executive are not > sential components in the definition of law. ional customary norms and treaties do i re utsaiey effects. A country that flagrantly violates its international obligations risks retaliatory action from the community of nations around the world. Basis of enforcement: Obedience of international law by member states is based on the principle of reciprocity. This means a nation obeys because it wants other nations to do the same, and it wants to be seen as a ‘law-abiding’ country by other nations. In practice, however, no sovereign state can be forced to obey international law without its consent or willingness to do so. This is so because there is no international executive, or world Police force to execute international decisions, even those of the International Court of Justice, an agency of the United Nations, _ An exception is found in Chapter VIL of the United Nation Charter which grants the Security Council met cia aa ‘ “Arte i) ofthe Uh Charter states: “Nothing contained in the present party al Authorize the United Nations to intervene in matters which are esse2- tially doen Jerid of, Any state or shall require th oe I Settlemey the present ‘ is princi not prejudice the application of enforeer'e Poe ec voa7 CHAPTER? NATURE OF LAW coercive power eats % eat preaches of peace and acts of aggression. : aries may be done through diplomatic, economic ¥ ra sanctions to enforce {international decisions. ap! ay of the United Nations Charter also outlines fhe a a used for peaceful settlement of disputes. ‘These inc uc the use of good offices, mediation and fact-finding. with respect to thi CASE STUDY: Adolf Eichmann case Israeli agents kidnapped On May 11, 1960, p chmann* from Argentine ‘Argentina citizen Adolf Bi : temitory. Israel’s act was unilateral, and failed to comply with international or national (Argentine) due process laws. A clear violation of international law, it sparked protests from many states. Although Israel apologized to Argentina, it insisted that Eich- mann must face charges for crimes against human- ity for his role in administrating the Dachau con- centration camp and in managing the deportation of the Jews to the extermination camps. For Israel, bes sinhosord TUN. Charter, Chapter VII, Action with Respect to Threats to Peace, Breach- ‘es of Peace and Acts of Aggression: Art, 39 The Security Couneil shall determine the ca oe eno et any threat tothe peace, breach ofthe peace, or actof aggression and shall ca tenet mmmendations, or decide what measures chall be taken in accordance with ‘Auiiles 41 and 42, fo maintain or restore international peace and security; Art. 40 ar exder to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in 39, call upon the parties concerned to comply with such provisional measures as it ‘Jeoms necessary or desirable, Such provisional measures shall be without prejudice {a the rights, claims, or postion of the parties concerned. The Security Couneil shall duly take account of failure to comply with such provisional measures’ Art. 41 The Security Council may decide what measures not invelving the use of armed force are tobe ennployed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures, These may include complete or partial inter- ruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other neans of communication, and the severance of diplomatic relations; Art. 42 ‘Should the Security Council consider that measures provided for in Articles 41 would be in- adequate or have proved to be inadequate, it may take such action by air, sea, or land foress as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land foros ‘of members of the United Nations.” a ‘the time of the arrest Eichmann used the name Ricardo Klem: \- ent) and worked as foreman in a Mercedes Benz plant in Buenos Aires. oa— LEGAL PHILOSOPHY FOR FILIPINOS: ‘A CASE STUDY APPROACH Bichmann is answerable to a higher moral law ; active role in the Holocaust. Is it all right her in hig international and Argentine national laws ; Violate to answer to a higher law? Is it all right to 1 order law for that matter in one’s hands? take any Should Israel have refrained from kid: Eichmann, or followed Argentine and Inte: napping legal processes? TMationa]